Canada: The Supreme Court Vivendi Decision And Its Not Insignificant Implications

The first judgment of 2014 rendered by the Supreme Court of Canada, Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1 ("Vivendi"), deals with the conditions for authorization of a class action in Quebec. The judgment has several important implications for Canadian businesses that are likely to be involved in class action proceedings.

First, the Court held that the "commonality of issues" test for authorization is satisfied by even a single common question, as long as it can serve to advance the resolution of a "not insignificant portion of the dispute". Second, the Court stated that the answer to a common question may vary among class members, and that the authorization judge should not focus on what the answers might be, provided that success for one class member does not mean failure for any other. Third, the authorization judge ought not to concern himself with the existence of multiple sub-classes that may need to be created for trial purposes. Finally, the proportionality principle, an important precept of the Quebec Code of civil procedure ("CCP"), cannot serve as a basis to deny the authorization of a class action if the other conditions are met.

Overall, the Vivendi judgment endorses the "authorize now, ask questions later" approach already espoused by many judgments in Quebec. The Court, however, does not explain how common issues trials involving disparate claims and a multitude of sub-groups will achieve the objectives of efficiency that justify any class action regime.


Vivendi deals with a series of disputes concerning the interpretation of a pension plan ("Plan") of the wine and spirits company Seagram Ltd., which Vivendi acquired in the early 2000s.

The Plan had been amended several times throughout the years. In particular, in 1985, the employer had inserted a unilateral amendment clause which reserved the company's right to modify or suspend the Plan and its benefits.

In 2008, Vivendi, Seagram's successor with respect to the Plan, informed the Plan's beneficiaries (all retirees at the time) that it would be making amendments that were adverse to their interests. Those amendments came into effect on January 1, 2009 ("2009 amendments"), after which Mr. Dell'Aniello applied to the Quebec Superior Court for authorization to institute a class action against Vivendi on behalf of the beneficiaries of the Plan.


(a) Superior Court of Quebec (Mayer J.)

Mayer J. dismissed the motion for authorization to institute a class action on the basis that the questions were not identical, similar or related, as required by art. 1003 (a) CCP.

Mayer J. found that the resolution of the dispute regarding the validity of the 2009 amendments to the Plan depended on the determination of each employee's vested rights. Given that this determination had to be evaluated at the moment of retirement, it was impossible to examine the question collectively: the employees had retired at different times between 1971 and 2003, and each had received different communications from their employer with respect to their rights in the Plan.

Mayer J. reasoned that there were at least five (5) different sub-groups: (1) surviving spouses of employees who had retired before January 1977; (2) employees who had retired between January 1977 and July 1985; (3) employees who had retired between July 1985 and December 1995; (4) employees who had retired between January 1996 and June 2000; and (5) employees who had retired after June 2000.

Mayer J. also noted that the unilateral amendment clause did not apply to the group of beneficiaries who retired before June 1985. Consequently, any decision regarding the scope of the unilateral amendment clause would be irrelevant to the determination of the claims of as many as 20% of the proposed class.

Finally, Mayer J. observed that the proposed class members had worked in six (6) different provinces. This, combined with the multiple sub-groups, meant that the judge hearing the case would need to complete over twenty-two (22) different legal analyses in order to determine the validity of the class members' claims. The lack of homogeneity in the proposed class contributed to his refusal to authorize.

(b) Quebec Court of Appeal (Chamberland, Rochon, and Léger JJ.A)

The Court of Appeal unanimously allowed the appeal and authorized the class action.

The Court of Appeal held that a court applying art. 1003 (a) CCP in the circumstances of this case must only determine whether a proposed common question, e.g. the validity of the 2009 amendments to the Plan, was identical, similar or related. By assessing how the amendments affected each sub-group and member of the proposed class, the Superior Court had effectively ruled on the merits of the claims and thus overstepped its role at the authorization stage.

The Court of Appeal held that the validity of the amendments was the main question at issue, and that it was a common concern of all members of the proposed class.


The Supreme Court dismissed Vivendi's appeal and affirmed the decision of the Court of Appeal. In doing so, the Court took the opportunity to reiterate and broaden the flexible approach pertaining to authorization proceedings in Quebec.

(a) Scope of Inquiry at the Authorization Stage

The Court reiterated the basic principles of its recent ruling in Infineon Technologies AG v. Option consommateurs, 2013 SCC 59 ("Infineon"), which can be summarized as follows:

  • authorization is a screening mechanism intended to weed out untenable claims;
  • petitioner need only establish a "prima facie case," or an "arguable case";
  • authorization is a procedural stage; the merits of the case must not be examined.

It is now eminently clear that the threshold at the authorization stage is very low. Vivendi will support class counsel's arguments that courts should spend as little time and energy as possible in assessing whether the claims of the class members are consistent or even answerable.

(b) Commonality and the "Not Insignificant" Test

One of the major tenets that the Vivendi ruling will stand for is that in order for a petitioner to meet the commonality requirement of art. 1003 (a) CCP, all he is required to demonstrate is that there exists at least one aspect of the case the determination of which will potentially resolve a "not insignificant portion of the dispute" for all members of the group.

If certain Quebec judgments had already established that one common question was sufficient to advance the debate, Vivendi and its "not insignificant part of the debate" language arguably goes beyond the existing state of the law and is, at the very least, a strong endorsement of the authorization-friendly current of jurisprudence. How to determine what a "not insignificant portion of the dispute" amounts to will, of course, need to be determined by Quebec courts.

(c) Common Questions, Not Common Answers

The Vivendi decision clearly confirms that there exist two distinct class action regimes in Canada.

Commenting on the commonality requirement, the Court points out that the applicable test is different in the common law provinces than in Quebec, and that common law precedents must be prudently applied in Quebec.

The Court also concludes that the commonality requirement in Quebec must concern the questions raised by the proposed class proceeding, and not the answers to them. The reason for the conclusion is based on the Court's observations that: (1) the words of Quebec's statutory provision is broader in scope as it does not require a Court to look for 'common issues' as well as 'common questions' in order to authorize a class action, and (2) Quebec case law has always interpreted the commonality requirement in a broader and more flexible manner.

The Court holds that as long as the answer to a common question does not give rise to conflicting interests among the members of the group, there is no need for the court to consider what the answers might be.

(d) Sub-Groups are No Obstacle

The Supreme Court stated that a judge at the authorization stage must not worry about the existence of potential sub-groups within a proposed group; this analysis is neither necessary, nor relevant.

The existence of sub-groups does not, in and of itself, constitute a sufficient basis for refusing to authorize a class action. For authorization to be refused, there must be conflicting interests between members of the group.

(e) Proportionality Cannot Be Assessed Separately

Vivendi has also clarified the role that the principle of proportionality, which is found in art. 4.2 CCP, is meant to play in class proceedings. In a rather significant change of position, the Court adopted and applied Deschamps J.'s dissenting opinion in Marcotte v. Longueuil (City of), 2009 SCC 43: the principle of proportionality must not be considered as a separate criterion on the basis of which a judge can refuse to authorize a class action. Rather, the four (4) criteria included in art. 1003 CCP are exhaustive and proportionality must only be considered and applied in the court's assessment of each of them.

The Court concludes that allowing a judge to deal with proportionality separately could indirectly defeat the Quebec legislature's decision to omit a requirement that class proceeding be "preferable" or "more appropriate" in a given set of circumstances, as is the case in the common law provinces.


Vivendi, along with the Supreme Court's recent judgment in Infineon, will have an important impact on class proceedings in Quebec.

The Supreme Court's latest pronouncements will allow class counsel to argue that authorization in Quebec is just a procedural formality. A well drafted motion will be enough to satisfy the authorization criteria in most cases. Class action defendants and their counsel will certainly need to re-evaluate their strategy with respect to the filing of preliminary motions prior to authorization, as well as their arguments at the authorization stage.

The Court's clear endorsement of the broad and flexible approach to the commonality requirement of art. 1003 (a) CCP, distinct from the more rigid approach of the common law provinces, will motivate class counsel to file (or keep filing) multi-jurisdictional class actions in Quebec. The Court did note that Quebec judges have the ability to hear evidence regarding the law applicable in other provinces or take judicial notice of that law. The Court nevertheless confirmed that "substantial differences between the applicable legal schemes would cause a class action to lose its collective nature" (para. 62). This acknowledgment is important given the rising number of national and global class proceedings being filed in Canada, in the context of which choice of law differences among the class should in some cases be a barrier to authorization.

The absence of any discussion concerning the appropriate level of abstraction for a proposed common question is worrisome. Any question, if framed in a sufficiently general way, can become "common". However, if the resolution of underlying claims requires disparate analyses, the question should, in theory, be unsuited for a class action. The Supreme Court had itself expressly recognized this notion in Rumley v. British Columbia, 2001 SCC 69 ("Rumley"), at para. 32:

It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such an action would ultimately break down into individual proceedings. That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient.

Despite referring to Rumley and Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 ("Dutton") (see para. 44 of Vivendi), which expressly recognized the importance of avoiding duplication of fact-finding or legal analysis, the Court now appears to evacuate this concern for Quebec courts. Rumley, Dutton and other Supreme Court "common law" precedents, which had until now been routinely applied by Quebec courts, can no longer "be imported without adaptation" (para. 48).

While this may be true, part of the Court's reasoning in holding that the Quebec regime is distinct appears unjustified. For instance, one of the justifications provided by the Court for its position on the particularity of the commonality requirement in Quebec is its observation that "[n]owhere has the legislature stated that there must be common answers" (para. 51).

The Supreme Court's rejection of the proportionality principle as a potential tool to control whether the objectives of efficiency are achieved is also disappointing, as is the Court's conclusion on sub-grouping, which effectively means that significant differences in the types of claims and damages between class members will have to be settled at trial.

Clarification may be needed as to how a judge can determine whether sub-groups or answers to common questions might result in conflicting interests when he or she is prohibited from any examination of how the case will play out on the merits post-authorization.

Overall, practitioners will probably be troubled to see that the Supreme Court chided the motion judge for his forward-looking analysis of whether a class action could be managed and tried efficiently.

Case Information

Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1

Docket: 34800

Date of Decision: January 16, 2014

To view original article, please click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Langlois lawyers, LLP
Langlois lawyers, LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Langlois lawyers, LLP
Langlois lawyers, LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions